United States v. Nolf

• Decision Date: 20 June 2014
• Docket Number: No. CR 10–1919–002.,CR 10–1919–002.
• Parties: UNITED STATES of America, Plaintiff, v. Kevin Michael NOLF, Defendant.
• Court: U.S. District Court — District of New Mexico

30 F.Supp.3d 1200

UNITED STATES of America, Plaintiff,
v.
Kevin Michael NOLF, Defendant.

No. CR 10–1919–002.

United States District Court, D. New Mexico.

Filed June 20, 2014

So ordered.

[30 F.Supp.3d 1202]

Damon P. Martinez, Acting United States Attorney, James R.W. Braun, Nicholas Jon Ganjei, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Alonzo J. Padilla, Susan B. Dunleavy, Assistant Federal Public Defenders, Albuquerque, NM, for Defendant.

UNSEALED MEMORANDUM OPINION AND ORDER ¹ JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Plaintiff United States' Sealed Motion for Downward Departure, filed August 16, 2012 (Doc. 146)(ex parte)(“Downward Departure Motion”); (ii) Defendant Kevin Nolf's Sealed Sentencing Memorandum, filed October 25, 2012 (Doc. 149)(“First Nolf Brief”); (iii) the United States' Sentencing Memorandum and Response to Defendant's Sentencing Memorandum, filed October 27, 2012 (Doc. 150)(ex parte)(“First U.S. Brief”); (iv) Nolf's Sealed Sentencing Memorandum in Support of a Sentence Below the Mandatory Minimum Sentence of Five (5) Years, filed January 28, 2013 (Doc. 168)(“Second Nolf Brief”); and (v) the United States' Brief Regarding Sentencing, filed May 14, 2013 (Doc. 178)(ex parte)(“Second U.S. Brief”). The Court held sentencing hearings on November 20, 2012, and July 17, 2013. The primary issues are: (i) whether the Court should apply the Sentencing Guidelines' career offender enhancement, see U.S.S.G. § 4B1.1, to Nolf, where his only prior felony convictions are a 1999 possession of marijuana and a 2003 aggravated assault, and, absent the enhancement, and he would only have 6 criminal history points and be placed in criminal history category III; (ii) whether the Court may sentence Nolf to a term of imprisonment below the statutory mandatory minimum by combining a downward departure for substantial assistance to the government, see U.S.S.G. § 5K1.1, that would not on its own result in a sentence below the statutory mandatory minimum, with a downward variance; and (iii) whether the Court should vary Nolf's sentence downward from the 63–78 month sentence range that the Guidelines prescribe. The Court will apply the career offender enhancement to Nolf, because he meets the criteria of U.S.S.G. § 4B1.1(a), and that provision of the Guidelines—beyond simply being a sound embodiment of Congress' statutory mandate to the Sentencing Commission—is a near carbon-copy of 28 U.S.C. § 994(h). The Court lacks the authority to depart or vary below the statutory mandatory minimum, because 18 U.S.C. § 3553(e) permits a court to depart below a statutory mandatory minimum only for a defendant's substantial assistance to the government, which means that variances and non–5K1.1 departures may not result in the imposition of a sentence below the statutory mandatory minimum, see 18 U.S.C. § 3553(f). The Court will, however, grant the Downward Departure Motion and vary Nolf's sentence downward to the extent that it can—three months—to the statutory mandatory minimum of 60 months.

FACTUAL BACKGROUND

The Court will take its facts primarily from the Presentence Investigation Report

[30 F.Supp.3d 1203]

(“PSR”) that United States Probation Officer Jeffrey D. Martinez–Spelich prepared, which summarizes information “obtained from discovery material contained in the United States Attorney file as reported by United State Immigration and Customs Enforcement agents, Quay County, New Mexico Sherriff's deputies, and New Mexico State Police officers.” PSR ¶ 4, at 3.

1. The Offense of Conviction.

On April 26, 2010, the Air and Marine Operations Center (“AMOC”) detected an unidentified aircraft traveling across Arizona and into New Mexico. See PSR ¶ 5, at 3. AMOC planned to dispatch a plane to intercept the unknown aircraft, but AMOC's tracking of the unknown aircraft was lost. See PSR ¶ 5, at 3. The unknown aircraft was later located over Grants, New Mexico, and then descending into Santa Rosa, New Mexico, en route to the Route 66 Airport. See PSR ¶ 5, at 3. AMOC notified the Santa Rosa Police Department (“SRPD”) of the unknown aircraft. See PSR ¶ 5, at 3.

SRPD arrived at the airport and observed the unknown aircraft, as AMOC had identified, parked there. See PSR ¶ 6, at 3. SRPD officers headed toward the vehicle, but a passenger, later identified as Nolf, saw the officers, appeared to inform the pilot, later identified as co-Defendant Sean Peterson, of the SRPD officers' approach. See PSR ¶ 6, at 3. Nolf and Peterson then engaged the aircraft and headed for the airstrip; SRPD officers noted the tail number on the aircraft. See PSR ¶ 6, at 3. The aircraft evaded the SRPD officers and took off, and appeared to be heading toward Tucumcari, New Mexico. See PSR ¶ 6, at 3–4.

Later, Gerald Hight, a ranch owner in Tucumcari, observed a low-flying aircraft circling his residence. See PSR ¶ 7, at 4. The aircraft appeared to be attempting a landing on New Mexico State Highway 209, but finally landed in Hight's pasture. See PSR ¶ 7, at 4. Hight drove to the landing site with his son, and saw Nolf and Peterson unloading duffle bags from the aircraft. See PSR ¶ 7, at 4. When Nolf and Peterson saw the Hights, they began to put the duffle bags back into the aircraft. See PSR ¶ 7, at 4. The Defendants said they were uninjured, and told Hight that they did not need to call 911 or the Federal Aviation Administration. See PSR ¶ 7, at 4. Hight offered to take the Defendants to Tucumcari for lodging, and on the way there, Hight overhead one of the Defendants state that they “were not going to make it to New Orleans tonight.” PSR ¶ 7, at 4. Hight took the Defendants to the Holiday Inn in Tucumcari, but Hight then saw the Defendants leave the Holiday Inn and enter the Microtel Inn Hotel. See PSR ¶ 7, at 4.

Hight found the Defendants' behavior suspicious and reported the incident to the New Mexico Sheriff's Department in Quay County. See PSR ¶¶ 7–8, at 4. When deputies arrived at the Microtel Inn, they found Peterson, but not Nolf. See PSR ¶ 7, 9, at 4. When questioned, Peterson stated that he did not know anything about the landing. See PSR ¶ 9, at 4. The Sheriff's Department called the New Mexico State Police (“NMSP”) regarding the aircraft landing, and NMSP officers arrived at the Microtel Inn to investigate. See PSR ¶ 9, at 4. Peterson would not provide a statement without an attorney. See PSR ¶ 9, at 4. The NMSP officers read Peterson his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and transported him to the NMSP Office in Tucumcari. See PSR ¶ 9, at 4. The hotel staff informed the Sheriff's deputies that Nolf had left before the Sheriff's deputies arrived, and the staff provided the officers with a copy of Nolf's identification, but

[30 F.Supp.3d 1204]

officers could not locate Nolf. See PSR ¶ 9, at 4. Because the officers could not obtain a search warrant and were not able to classify the landing as a crash or emergency landing, Peterson was released on April 27, 2010. See PSR ¶ 9, at 4.

Later on April 27, 2010, the NMSP officers obtained a search warrant and searched the aircraft, finding 377.5 pounds of marijuana inside large black duffle bags in the aircraft. See PSR ¶ 10, at 5. Two additional duffle bags were found in the vicinity, which, combined with the marijuana inside the aircraft, totaled 424.8 pounds of marijuana. See PSR ¶ 10, at 5. The aircraft was damaged from the landing. See PSR ¶ 10, at 5. An investigation into the aircraft revealed that Nolf was listed as the owner, and that Peterson had a valid pilot's license. See PSR ¶ 11, at 5.

Federal arrest warrants were issued for Nolf and Peterson on May 10, 2010. See PSR ¶ 11, at 5. The Criminal Complaint as to Nolf alleges that his actions violate 21 U.S.C. § 846, conspiracy to commit a violation of 21 U.S.C. § 841(a)(1), for having “[k]nowingly and willingly conspire[d] to distribute over 100 kilograms or more of a mixture or substance containing a detectible amount of marijuana, a controlled substance.” Criminal Complaint at 1, filed May 10, 2010 (Doc. 1).

2. Offender Characteristics.

Nolf has been convicted on three occasions before this incident, two of which included felony convictions. On July 10, 2000, Nolf was convicted of misdemeanor possession of drug paraphernalia and cited for not driving without proof of insurance; he was sentenced to one day of jail. See PSR ¶ 34, at 10. On December 8, 2000, Nolf pled guilty to felony possession of marijuana for sale in Maricopa County, Arizona, and sentenced to six months jail time and five years of supervised probation, as well as community service and a fine. See PSR ¶ 33, at 9. On that occasion, Nolf was caught with 9.1 kilograms of marijuana that he was attempting to ship to Chicago, Illinois. See PSR ¶ 33, at 10. On October 1, 2004, Nolf was convicted of aggravated assault for “point [ing] a semi-automatic handgun out of the window [of his truck] and aim[ing it] at [another motorist's] face.” PSR ¶ 35, at 11. His probation from the previous conviction was revoked for one year, and he was sentenced to an additional two-and-a-half years of incarceration. See PSR 33, at 9–10; id. ¶ 35, at 11. Nolf thus has a total of six criminal history points, which would place him in criminal history category III, see U.S.S.G. § 5A, but because he meets the criteria of the career offender enhancement, he is automatically placed into category VI, see PSR ¶ 36, at 11; U.S.S.G. § 4B1.1(a)-(b). Additionally, there were two active Drug Enforcement Administration investigations relating to narcotics pending as to Nolf at the time of the offense. See PSR ¶ 11, at 5.

Nolf was 32 years old at the time of his arrest. See PSR ¶ 38, at 12. He was raised in Tucson, Arizona, the only child of a single mother, Miki Nolf, who works as a mail-carrier. See PSR ¶ 38–40, at 12. Nolf was an angry, rebellious child with a friendless, fatherless, and alienated...